Opinion: With Justice Ginsburg’s death, workers’ rights are at the brink

by C.M. Lewis

Justice Ruth Bader Ginsburg’s death has cleared the way for what many have feared for years: the possibility of a third Trump-appointed Supreme Court Justice.

Conservatives stand poised to take utter control of the Courts for at least a generation. The Affordable Care Act will be at risk; rights for the undocumented will be at risk. Cornerstones like Roe v. Wade will be under threat, raising the spectre of a return to a United States with no federal abortion rights. Any number of other fundamental aspects of civil rights law are on the line. The possibilities are endless—and universally grim.

Workers’ rights are not immune to the dark potential. Conservative justices have already signalled their hostility to workers with decisions like Epic Systems v. Lewis. The stakes could not be higher—and what unionists must understand is that the next Supreme Court appointee may hold the power to destroy the last vestiges of legal power for public sector unions. If they do so, it will unleash an assault on the labor movement from which it will struggle to recover.

The wishlist for radical, anti-worker conservatives has been clear for years. Groups like the National Right to Work Foundation and Koch-funded State Policy Network affiliates have employed a legislative and legal strategy to peel back key union rights, especially targeting public sector labor. They have been relentless—and successful. Even when they do not win immediately, they continue to bring bill after bill and case after case until they accomplish their goals. 

The cases they bring, like Uradnik v. Inter-Faculty Organization, show their goal: the destruction of public sector unions. Uradnik challenged exclusive representation—and although the current Court declined to hear it, it is not going away. A newly emboldened conservative majority will face enormous pressure to tackle what anti-union activists call “monopoly bargaining”—in other words, the well established right to represent all workers in a given workplace. If exclusive representation is ended the fundamental underpinnings of public sector labor relations and collective bargaining will collapse, setting the clock back to before the expansion of public sector bargaining in the 1960s. 

It does not end with the threat to exclusive representation. Current cases are moving through federal courts following the landmark Supreme Court case Janus v. AFSCME, which imposed “Right-to-Work” on all public sector workers nationwide. The cases are brought with the support of the National Right to Work Foundation, and seek a refund of all “fair share” fees charged by unions to nonmembers. So far, unions have successfully utilized a “good faith” defense that they were following the law as it stood, and acted to comply with Janus when it was ruled. In recent court decisions, Trump appointees have already signalled they are skeptical of labor’s defense.

If such a case is decided against unions—a very real possibility with a Supreme Court with an anti-worker majority—it could spell financial catastrophe for unions across the United States. Imagine unions with large concentrations of public sector workers like AFSCME, NEA, AFT, and SEIU, forced to pay millions and millions out to former fee payers across time periods potentially spanning decades. 

The reality is that with an expanded anti-worker majority, we have to assume that the fundamental foundations of union rights are no longer assured. Basic principles like Weingarten Rights, public sector exclusive representation, and even private sector union rights will be at risk. Regardless of who is President, attempts to expand rights—like the Protecting the Right to Organize (PRO) Act, and the Public Service Freedom to Negotiate Act—will be subject to immediate legal challenges. Nothing will be safe, and labor will be hard-pressed to fight a judiciary hostile to its existence.

Who controls the Supreme Court is a union issue, and unionists and those concerned with workers’ rights must make clear that a rushed, radically conservative nomination to replace Justice Ginsburg is an act of war against workers. We cannot sit on the sidelines, and we cannot accept timidity or handwringing from Senate Democrats. They must be forced into mounting the sort of opposition that we need, and which they have been unwilling to provide. 

The hand-picked stooges of the bosses will not accept failure to seize control of the Supreme Court easily, and the odds of stopping them may seem daunting. But the fight must be fought with every weapon at our disposal. Nothing short of a full-throated opposition—including bodies in the streets, and in Senate offices—will be enough. If there was ever a moment to throw the kitchen sink—and the cabinets, too—it is now.

C.M. Lewis is an editor of Strikewave and a union activist in Pennsylvania.